December 1, 1994
Mr. Kenneth H. Ashworth
Commissioner
Texas Higher Education
Coordinating Board
P.O. Box 12788
Austin, Texas 78711
Letter Opinion No. 94-080
Re: Whether an individual may “be
employed simultaneously in a full-time
faculty position at both a public junior
college and a state university without
violating the state constitution or other
state law” (ID# 27929)
Dear Commissioner Ashworth:
You have requested our opinion regarding whether an individual may “be
employed simultaneously in a full-time faculty position at both a public junior college
and a state university without violating the State Constitution or other state law.”
Article XVI, section 40, of the Texas Constitution prohibits any person from
simultaneously holding more than one “civil office of emolument.” It is well established,
however, that a professor at a state-supported university does not thereby occupy an
“office.” Tilley v. Rogers, 405 S.W.2d 220, 224 (Tex. Civ. App.--Beaumont 1966, writ
ref’d n.r.e.). See also Attorney General Opinion DM-212 (1993); Letter Opinion Nos.
93-96, 93-37 (1993). Another provision of article XVI, section 40, declares that
State employees or other individuals who receive all or part of their
compensation either directly or indirectly from funds of the State of
Texas, and who are not State officers, shall not be barred from
serving as members of the governing bodies of school districts,
cities, towns, or other local governmental districts; provided,
however, that such State employees or other individuals shall
receive no salary for serving as members of such governing bodies.
Since neither position of which you inquire is that of a member of the “governing body”
of a “local governmental district,” this portion of article XVI, section 40, is inapplicable.
See Letter Opinion Nos. 93-96 (1993); 90-39 (1990).
Furthermore, no branch of the common-law doctrine of incompatibility is
relevant to the situation you pose, whether “self-appointment,” “self-employment,” or
“conflicting loyalties.” See Attorney General Opinion JM-1266 (1990); Letter Opinion
No. 94-20 (1994). Finally, codification of title 5 of the Government Code has now
removed all doubt that any general statute imposes limitations upon dual state
employment. See Gov’t Code, ch. 574. We conclude that there is no constitutional,
statutory, or common-law impediment to an individual’s simultaneously holding full-
time teaching positions at both a state university and a public junior college. Whether
policies or regulations of either institution might prohibit such dual employment raises
questions of fact which we cannot resolve through the opinion process.
S U M M A R Y
There is no constitutional, statutory, or common-law
impediment to an individual’s simultaneously holding full-time
teaching positions at both a state university and a public junior
college.
Yours very truly,
Rick Gilpin
Deputy Chief
Opinion Committee
Section 574.001 provides:
A nonelective state officer may not accept an offer to serve in another
nonelective office unless the officer obtains from the governing body or, if there
is not a governing body, the executive head of the agency, division, department,
or institution with which the officer is associated a finding that the officer has
satisfied Article XVI, Section 40, of the Texas Constitution.
With the enactment of this statute in 1993, the constitutional revisors belatedly acknowledged
the validity of Attorney General Opinion H-5 (1973), which declared that the 1972 amendments to article
XVI, sections 33 and 40, had impliedly repealed article 6252-9a, V.T.C.S., to the extent that it was
applicable to state employees.
Mr. Kenneth H. Ashworth - Page 3